Craig Cutting and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 616

[2013] AATA 616

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3023
Re	Craig Cutting
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Deputy President RP Handley
Date	30 August 2013
Place	Sydney

The decision under review is set aside and a decision substituted that Mr Cutting satisfies s 94(1)(a), (b) and (c) of the Social Security Act 1991 and, subject to satisfying any other eligibility requirements, is qualified for a Disability Support Pension.

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Deputy President RP Handley

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – impairment tables – continuing inability to work – applicant meets impairment rating requirement –  applicant has severe impairment – decision under review set aside

LEGISLATION

Social Security Act 1991 (Cth) ss 94, 94(1), 94(2), 94(3B), 94(5)

Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 2, cl 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Deputy President RP Handley

1. Mr Cutting (the Applicant) has applied for a review of a Social Security Appeals Tribunal (SSAT) decision affirming a decision made by a delegate of the Secretary of the Department of Families, Community Services and Indigenous Affairs (the Respondent) rejecting Mr Cutting’s application for a Disability Support Pension (DSP).

   BACKGROUND

2. Mr Cutting is aged 50. He has been receiving Newstart Allowance since 26 April 2005. On 15 February 2012, Mr Cutting lodged an application for DSP in respect of the conditions ‘chronic arthritis of wrist both hands; Back Pain’. Mr Cutting provided a medical report from Dr Toan Dang, General Practitioner, dated 15 February 2012, supporting his DSP application. Dr Dang diagnosed Mr Cutting’s conditions as being bilateral wrist arthritis and scapholunate ligament disruption, and chronic recurrent lower back pain. He noted that Mr Cutting was unable to do any manual work, sit for a long period or do any heavy lifting or bending. Dr Dang listed two further conditions – depression and shoulder rotator cuff tear – that were well managed and would only cause minimal or limited impact on Mr Cutting’s ability to function. On 21 February 2012, Mr Cutting lodged a Medical Assessment by Dr Dang who noted that Mr Cutting has pain and restricted movement in his wrists and lower back but does not need regular support.

3. On the 22 February 2012, a Job Capacity Assessment was conducted by an exercise physiologist with the assistance of a registered psychologist at the Parramatta Centrelink office and a report prepared dated 23 February 2012. The Assessor found Mr Cutting’s medical conditions of bilateral knee pain, lower back pain, ischaemic heart disease, shoulder rotator cuff tear and depression were not fully treated or stabilised. The Assessor found Mr Cutting’s bilateral wrist arthritis and scapholunate ligament disruption to be fully diagnosed, treated and stabilised as the Applicant had undergone surgery and physiotherapy on both wrists with no further improvement expected, and assessed the condition as attracting five points under Table 2 of the Impairment Tables – Upper Limb Function. The Assessor found that Mr Cutting had a baseline work capacity of 8-14 hours per week with the capacity to undertake 15-22 hours of light less skilled work within the next two years with intervention.

4. On 24 February 2012, Centrelink rejected Mr Cutting’s DSP application. Mr Cutting sought a review of this decision, which was affirmed by an Authorised Review Officer on 13 April 2012.  After a further review at Mr Cutting’s request, on 29 June 2012, the SSAT affirmed the decision but found Mr Cutting’s wrist condition should be accorded an impairment rating of 10 points under Table 2. In the meanwhile, on 24 June 2013, a further Job Capacity Assessment was undertaken. In a report dated 2 July 2013, the Assessor found all Mr Cutting’s claimed conditions to not be ‘fully diagnosed, treated and stabilised’ except for the arthritis affecting his upper limbs (his wrists) which was found to attract an impairment rating of 10 points. The report states Mr Cutting requires specialist disability employment intervention, specifically by the Department of Employment Services (DES) Disability Management Service and that he has a ‘baseline work capacity’ of 8 to 14 hours a week and 15 to 22 hours per week within two years with intervention.

5. On 17 July 2012, Mr Cutting applied to the Tribunal for a review of the SSAT decision.

   RELEVANT LEGISLATION AND ISSUES

6. Section 94 of the Social Security Act 1991 (Cth) (the Act) states relevantly that:

   (1)  A person is qualified for disability support pension if:

   (a)  the person has a physical, intellectual or psychiatric impairment; and

   (b)  the person's impairment is of 20 points or more under the Impairment Tables; and

   (c)  one of the following applies:

   (i)  the person has a continuing inability to work;

   …

   (2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa)  in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B)--the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)  in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)  in all cases--either:

   (i)  the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)  if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   (3)  In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a)  the availability to the person of a training activity; or

   (b)  the availability to the person of work in the person's locally accessible labour market.

   …

   (3B)  A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

7. The relevant Impairment Tables are those in effect at the time Mr Cutting made his claim, which are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “Impairment Tables”).

8. The Impairment Tables contain rules for applying the Tables. Paragraph 6 states relevantly:

   Assessing functional capacity

   (1) The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.

   Applying the Tables

   (2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.

   Note: For additional information that must be taken into account in applying the Tables see section 7.

   Impairment ratings

   (3) An impairment rating can only be assigned to an impairment if:

   (a) the person’s condition causing that impairment is permanent; and

   Note: For permanent see subsection 6(4).

   (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

   Permanency of conditions

   (4) For the purposes of paragraph 6(3)(a) a condition is permanent if:

   (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b) the condition has been fully treated; and

   Note: For fully diagnosed and fully treated see subsection 6(5).

   (c) the condition has been fully stabilised; and

   Note: For fully stabilised see subsection 6(6).

   (d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Fully diagnosed and fully treated

   (5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (a) whether there is corroborating evidence of the condition; and

   (b) what treatment or rehabilitation has occurred in relation to the condition; and

   (c) whether treatment is continuing or is planned in the next 2 years.

   Fully stabilised

   (6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

   (a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

   (b) the person has not undertaken reasonable treatment for the condition and:

   (i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

   Note: For reasonable treatment see subsection 6(7).

   Reasonable treatment

   (7) For the purposes of subsection 6(6), reasonable treatment is treatment that:

   (a) is available at a location reasonably accessible to the person; and

   (b) is at a reasonable cost; and

   (c) can reliably be expected to result in a substantial improvement in functional capacity; and

   (d) is regularly undertaken or performed; and

   (e) has a high success rate; and

   (f) carries a low risk to the person.

   Impairment has no functional impact

   (8) The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.

   Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.

   Assessing functional impact of pain

   (9) There is no Table dealing specifically with pain and when assessing pain the following must be considered:

   (a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

   (b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

   (c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).

9. Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) requires that Mr Cutting’s qualification for DSP be assessed as at the date his DSP claim was made or in the 13 week period following the claim. Mr Cutting’s claim was lodged on 15 February 2012. The relevant period, therefore, is 15 February 2012 to 16 May 2012.

10. The Respondent accepts that Mr Cutting suffers from a number of physical impairments (bilateral knee pain, lower back pain, ischaemic heart disease, right shoulder rotator cuff tear and arthritis affecting both wrists) and a psychiatric impairment (depression) thereby satisfying s 94(1)(a) of the Act. At issue is whether his impairments should attract an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)) and, if so, whether Mr Cutting has a continuing inability to work (s 94(1)(c)).

    MR CUTTING’S CASE

11. At the hearing, Mr Cutting described a number of conditions which affect him, the principal one being described by Mr Cutting’s treating Hand Surgeon, Dr D Ryan (report dated 10 February 2012), as “bilateral scapholunate ligament disruption” and “chronic arthritis of wrists”. The Respondent accepts this is a permanent condition. The other conditions Mr Cutting identified, which he accepts would not be classified as ‘permanent’ according to the Impairment Tables, are as follows:

    ·Back condition. Recent x-ray and CT scan reports by Dr J Hunjan (4 February 2013 and 8 February 2013 respectively) support Mr Cutting’s evidence of ongoing problems. He has an appointment to see a spinal surgeon at Royal North Shore Hospital in November 2013 and accepts that surgery may be appropriate treatment.

    ·Bowel condition. Mr Cutting is awaiting an appointment to undergo a colonoscopy.

    ·Right Shoulder. Mr Cutting said he needs further investigation of this condition – a MRI scan which he cannot afford currently. He is unable to move his right arm up his back.

    ·Knees. Mr Cutting accepts that his condition needs further investigation. He has great difficulty lifting his knees to get up steps. There is an elevator where he lives.

    ·Left hip. Mr Cutting recently had an ultrasound of his left hip (report of Dr E Chan dated 22 August 2013). Mr Cutting said the cause of this problem is not clear at this stage but he suspects it may be linked to his back condition.

    ·Heart. Mr Cutting said he had surgery on his heart at the age of five and has a leaky heart valve: he gets palpitations and tightness in the chest sometimes; and he gets tired. He cannot afford the tests he needs.

    ·Ears. Mr Cutting said he gets blocked ears and sometimes feels dizzy. About four months ago, he fainted, fell and broke his nose. He has fainted about four times over the course of the last 16 years. He would like to consult a neurologist about this condition but cannot afford to do so.

    ·Depression. Mr Cutting said he broke up with his wife about eight years ago after 28 years of marriage. They have two children, now aged 15 and 17. His ex-wife is an accountant who worked for a bank. When the children were very young, Mr Cutting was the stay-at-home parent who looked after the children until they went to school. Since the breakdown of the marriage, his ex-wife has not allowed him to see the children, which has made him very depressed. He has consulted two psychiatrists in the past and is taking an antidepressant prescribed by Dr Dang.

12. Mr Cutting said he has had surgery on both wrists with no improvement. He has worn braces on both wrists since having surgery in 2011. With regard to the effect of his wrist condition, Mr Cutting said any movement of his wrists is very painful and severely restricts what he can do. If he moves his wrists in the wrong way, the resulting pain is like being electrocuted. Mr Cutting said his left wrist is a little better than the right, but nowhere near 50% better as recorded by the Job Capacity Assessor. He can pick up a one litre carton of milk using his left hand and his right elbow or forearm. This is also the way in which he would pick up a loaf of bread or a small box such as a box of tissues. He would not be able to pick up bulky objects. If he goes to the shop, he will ask the shop assistant to place the shopping bag on his left arm. He is unable to hold or use a pen or pencil and can barely sign his name because any pressure causes pain. He can pick up a pair of glasses but this is hard because he cannot really feel what he is doing. He can do up buttons with his left hand but has great difficulty with shoe laces: this requires both hands and “is a major event”.

13. Mr Cutting said the problem is that he cannot put any pressure on his fingers because he feels this as pain in his wrists: he cannot push down on buttons, for example, on an ATM, because this causes severe pain. To avoid using the ATM, he tries to go into the bank for personal service if he can. He uses his elbow to turn light switches on and pull up the blankets on his bed. If he gets out of bed in the night and forgets not to use his hands to push myself up, this causes severe pain – he needs to use his elbows for this. Mr Cutting said he uses his elbows to open door handles and cannot unscrew the lid of a soft drink bottle – he has a special gadget for this. He uses two hands to turn on a tap or to lift a cup of tea but has difficulty stirring his tea. Brushing his teeth is very hard, as is getting his phone out of his pocket when it rings – this is very difficult and takes a long time. To read a book, he sits the book on a stand and uses his little finger, which he wets for the purpose, to turn the pages.

14. Mr Cutting said his condition now is about the same as 12 months ago except in so far as he now has difficulty turning the stove on and washing his hands. Otherwise, his wrist condition is the same.

15. Mr Cutting said he would like to work if he could but would be unable to do so. Apart from the problems with his hands, as a result of his back condition he cannot sit for very long or walk very far. He travelled to the hearing using public transport and preferred to stand on the train for the journey which gave him less pain than if he had been sitting. He has difficulty bending and can only sit comfortably for about 15 minutes. When he watches television, he puts his legs up on a cushion, sits on another cushion and tries to keep moving. In the past, he has tried to lie on his hip, but now that is also hurting.

16. Mr Cutting said he has been attending a Disability Employment Service, ‘Break Thru Solutions’, for two to three years, but although they organised a job capacity assessment for him, they acknowledge that they can do nothing to help him. Mr Cutting pointed to the report from his hand surgeon, Dr Ryan (10 February 2012) saying that he cannot do “any heavy manual work”. Dr Ryan gave him cortisone injections in the follow up to surgery but this did not help. In a report dated 24 April 2013, Dr Dang said Mr Cutting could not do any manual work, and in a later report dated 27 May 2013, said Mr Cutting “is unable to work 15 hours a week in any form of work”. Mr Cutting said he would not be able to work at a job such as a car park attendant as suggested by the Respondent.

    THE RESPONDENT’S SUBMISSIONS

17. Ms Martini, for the Respondent, conceded that an impairment rating of 20 points under Table 2 may now be warranted, but said that at the relevant time in February to May 2012, 10 impairment points was the appropriate rating. Even if the Tribunal were to find that Mr Cutting’s impairment should be according an impairment rating of 20 points, Ms Martini contended that Mr Cutting did not at that time have a continuing inability to work. For example, the Job Capacity Assessor suggested that Mr Cutting could undertake less skilled work such as that of a car park attendant.

    DISCUSSION

18. The first issue for the Tribunal is whether Mr Cutting’s impairments should attract an impairment rating of 20 points or more under the Impairment Tables. Mr Cutting conceded that the only condition that, in terms of the requirements of the Impairment Tables (see paragraph 6 of the Tables above), is fully diagnosed, fully treated and fully stabilised is his bilateral wrist condition. I have considered the appropriate impairment rating for this condition in accordance with Table 2. The relevant descriptors and impairment points for ratings of 10 points and 20 points are as follows:

19.        10

There is a moderate functional impact on activities using hands or arms.

(1)        The person has difficulty with most of the following:

(a)        picking up a 1 litre carton full of liquid;

(b)        picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)        holding and using a pen or pencil;

(d)        doing up buttons or tying shoelaces;

(e)        using a standard computer keyboard;

(f)         unscrewing a lid on a soft-drink bottle.

20

There is a severe functional impact on activities using hands or arms.

(1)        Most of the following apply to the person:

(a)        the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

(b)        the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

(c)        the person has difficulty using a computer keyboard despite appropriate adaptations;

(d)        the person has severe difficulty using a pen or pencil;

(e)        the person has severe difficulty turning the pages of a book without assistance.

1. The Respondent contends that an impairment rating of 10 points is appropriate. Mr Cutting contends that the rating should be 20 points. In my view, having heard Mr Cutting’s evidence, summarised above, and reviewed the other evidence provided to me, I am satisfied that 20 impairment points is the appropriate rating. First, I am satisfied that the functional impact on Mr Cutting’s activities using his hands is severe, as stated by Dr Dang.

2. Addressing paragraph (a) of the criteria for 20 points, I am satisfied from Mr Cutting’s evidence that he has limited movement in both hands. I note his evidence that while he now has difficulty turning his stove on and washing his hands, his wrist condition is otherwise the same as that at the relevant time in February to May 2012: any wrist movement is likely to cause him pain and the application of any finger pressure causes wrist pain to the extent that he has severe difficulty in performing many daily activities. Dr Dang (report dated 27 May 2013) referred to Mr Cutting’s bilateral wrist arthritis having a “severe functional impact on his daily activities due to pain in his wrist and very restricted movements in both hands”.

3. In terms of paragraph (b), it is clear from Mr Cutting’s description of the difficulty he has handling, moving or carrying everyday objects such as a cup, a box of tissues or loaf of bread, turning on light switches, turning on a tap, opening a door handle, stirring a cup of tea, brushing his teeth, supporting himself when getting out of bed, and taking his phone out of his pocket, that the degree of difficulty he experiences is severe. For many of these activities he either uses his elbows, or his right elbow or forearm and left hand.

4. With regard to paragraph (c), Mr Cutting’s evidence is that pushing any sort of buttons or keys is very difficult because pressing on his fingers causes severe pain in his wrist. Thus, devices such as ATMs are very difficult for him to use and, in the case of ATMs, where possible he will go into the bank and ask for personal service.

5. With regard to paragraph (d), Mr Cutting’s evidence is that he has severe difficulty using a pen or pencil such that he can barely sign his name. Again, it is the pressure on his fingers required that causes severe wrist pain.

6. Lastly, with regard to paragraph (e), Mr Cutting described the difficulty he has reading a book, needing to place the book on a stand and use his wetted little finger to turn the pages.

7. Thus, I am satisfied that Mr Cutting meets most if not all the criteria for an impairment rating of 20 points.

8. Having accorded Mr Cutting’s wrist condition 20 points under a single Impairment Table, his impairment is therefore characterised as a ‘severe impairment’ pursuant to s 94(3B). Thus, the second issue arising is whether he has a continuing inability to work (s 94(1)(c)(i)) in terms of s 94(2)(a) and (b): (a) does his impairment of itself prevent him from doing any work independently of a program of support within the next two years, or (b) either his impairment is of itself sufficient to prevent him from undertaking an a training activity within the next two years or, if his impairment does not prevent him from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him do any work independently of a program of support within the next two years. ‘Work’ is defined in s 94(5) as follows:

   "work" means work:

   (a)  that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b)  that exists in Australia, even if not within the person's locally accessible labour market.

9. Mr Cutting gave evidence of having attending a Disability Employment Service ‘Break Thru Solutions’ for the past two to three years without having any benefit in terms of finding suitable employment. He showed me a letter from Break Thru Solutions advising him of an appointment on the day following the hearing, but he said he will try and postpone this having spent his remaining money on the train fare to attend the Tribunal hearing.

10. The Job Capacity Assessment Report dated 23 February 2012 suggests that Mr Cutting could do light less skilled work such as that of a factory or process worker. The most recent Job Capacity Assessment Report dated 24 June 2013 suggests that Mr Cutting could do light less skilled work such as that of a car park attendant. Having heard evidence from Mr Cutting and being satisfied from that evidence of the severe functional impact of his wrist condition on using his hands for everyday activities, I am equally satisfied that his condition would prevent him undertaking light less skilled work such as that of a factory or process worker or a car park attendant for at least 15 hours a week. Such activities require a person to use their hands at a level beyond the functional capacity of Mr Cutting, described above. Similarly, I am satisfied that his impairment would probably of itself prevent him undertaking a training activity within the next two years or, if not, such training activity is unlikely, because of his impairment, to enable him to do any work of at least 15 hours a week independently of a program of support within the next two years. Thus, Mr Cutting satisfies s 94(1)(c) of the Act and, subject to meeting any other eligibility requirements, is qualified for a DSP.

    DECISION

11. The decision under review is set aside and a decision substituted that Mr Cutting satisfies s 94(1)(a), (b) and (c) of the Act and, subject to satisfying any other eligibility requirements, is qualified for a Disability Support Pension.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.

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Associate

Dated  30 August 2013

Date of hearing	26 August 2013
Solicitors for the Respondent	K Martini, DHS Program Litigation Review Branch